Should the context that Leviticus was written in excuse its excessive use of the death penalty?

In Part I of this two-post series, I outlined some of various behaviors that Leviticus prescribes should be met with capital punishment—and how the death penalty was used in ancient Israelite society as a punishment for a much broader range of conduct than we use it today. I concluded that while those who support the death penalty are correct in that the Bible does put an imprimatur on it, it also does so for a variety of conduct that we would consider “cruel and unusual” punishment (to borrow the phrase from the U.S. Constitution). So that probably doesn’t make it a great source for such arguments. I also concluded, however, that before criticizing the book’s apparent cruelty, we should consider its historical context. And it’s that historical context I turn to for Part II.

The many prohibitions prescribed in Lev. 17-26 (containing the passages I refer to, but also including other material) is referred to as the so-called “Holiness Code.”  It’s called the “Holiness Code” because of the frequent usage, in these chapters, of the word “holy.”  Most scholars think that this part of Leviticus originated from the Priestly Source (“P”).  Those specific sources—referred to collectively as the “Documentary Hypothesis”—will get a further treatment later on in a future Holey Books post, but for the time being, it’s just important to note that the laws here generally originated from a single tradition.* The importance of whether this is “P” or another source, at least for this particular topic, is the time of composition. To this end, which is far more complicated than I am able to understand (with my limited knowledge of the topic), there is much scholarly debate–centered on exactly how old “P” can date to.  The difference really is whether it is post-exile or pre-exile.  The “exile” I am referring to, is, of course, the Babylonian Exile, where the Israelites had been kicked out of their lands, had their temple destroyed, and had been forced into captivity in Babylon. In other words this was a pretty bum deal, and one that would color much of the Old Testament.

This is probably an overly long way of reaching a single point: “P” and the “Holiness Code,” whatever time period they stem from, came about in a chaotic time for Israel–and where Israel was in a weak position compared to its neighbors. Social cohesion, unity, and enforcement of laws were paramount.

Many of the prohibited acts I described in the first post were, frankly, very difficult to enforce–and even more difficult to adequately punish. Ancient Israel at this time did not have anything in the realm of the full legal system that we have today–nothing compared to the law enforcement and adjudicatory actors that now uphold the law. There was no “Three Strikes” system, or proportional sentencing, or Constitutional protection.  And what made it worse, and what probably made the Ancient Israelites of this time seem more barbaric, was the precarious geopolitical situation they were put in.  Sandwiched between competing empires, and kicked out of their homeland (assuming “P” is post-exilic), the Israelites must have really needed to buckle down in order to survive.

This is not to excuse the punishments, however.  Many of them are extreme no matter what time they came about or were enforced–but we should probably give “P” and the Israelites of this time some benefit of the historical context, and some benefit of the delicate and emotional time that the texts were being written.

Which probably makes it all the more tenuous to use this portion of the Bible to justify support for capital punishment these days — supporters of the death penalty would be better for looking at more contemporary arguments than the writings of a difficult time in Jewish history.

*I use “single” loosely here.  The “P” source most probably was a weaving together of more than one tradition — more like the equivalent of a school of thought, really.